What Confucian traditions hinder the rule of law?

What Confucian traditions hinder the rule of law?

I will now change the question to: which Confucian traditions violate the principle of the rule of law? As a native of China, I know that the Confucian tradition is profound and complicated to analyze. But we can't be afraid of it without criticizing it, so as to maintain its authority or value absolutely blindly. There are four Confucian traditions. First, some essences have always been excellent and can be used to this day. (two) changed or glorious due to historical evolution; Third, it has a positive effect under certain historical conditions and has become a decadent legacy over time; Fourth, it is a pile of rubbish. Whether it is a specialized Confucian scholar or a generalized China scholar, we should avoid prejudice against Confucianism. The former may be obsessed with Confucianism because of its self-sufficiency, characteristics and sublimity, while the latter may completely deny Confucianism because of its own experience of its disadvantages. [ 1]

When I visited Professor unger for the first time, he recommended to me the preface of his book "A Review of Passion". When reading his works for the first time, the strongest impression is that the vocabulary used is rich and profound, and the meaning expressed is profound and incisive. I didn't realize that there were so many profound words in English before, and I was even more amazed at Unger's skillful rhetorical skills. I can't help but believe that the depth of a person's thought must be directly proportional to his language ability. When I read the preface of Passion Review, I was constantly infected by the author's passion, especially by his incisive analysis of Confucianism.

"The society advocated by Confucianism is a society that connects macro social organizations and micro personal passions. This dogmatic social relationship requires unequal rights, realistic exchange and mutual loyalty to be intertwined in the same interpersonal relationship. " [2] unger highly summarized the characteristics of social relations advocated by Confucianism, which was accurate and profound.

We actually live in such a society today, and our public affairs are all private and emotional. For example, it is an obligation for civil servants to serve the people, but in the Confucian tradition, there is always a meaning-parents' love for their own people. In this case, people should respect officials as much as their parents. Another kind of performance is similar, such as the interpersonal network in the appointment and dismissal of personnel organizations. At the beginning of administrative or judicial proceedings, contacts and acquaintances appear, which is convenient for communicating official decisions with personal feelings. In a modern country, public affairs and private feelings are still intertwined, and the bad consequences can be imagined if public affairs and individuals, reason and emotion, rule of law and human feelings are not distinguished?

"Confucianism pointed out that this emotional order and arrangement order of society are interdependent. When these two orders are combined into the same normative system, they will alleviate the antagonistic conditions between self-assertion and the growth of prosperity and happiness. However, when the public arrangement of society or the private feelings of social members are divorced from this ideal, then the vicious circle of self-isolation, distrust and conflict begins, … "[3].

Indeed, these two commands will produce two completely different results. The ultra-stable structure of the Chinese empire for thousands of years proves the internal strength of the so-called "harmonious" order of Confucianism. However, more than 100 years after 1840, from the political reform to the disintegration of the empire, from the continuation of man-made disasters and wars to the occurrence of reform motives, all show that the conditions of opposition between the two orders can no longer exist. However, this mode of social order designed by Confucianism has been deeply embedded in China people's concept of life, way of thinking and behavior, and unfortunately it has become the traditional culture of the Chinese nation. It's time to quit the historical stage, and it's hard to quit. On the one hand, there are still ...

Unger believes that the advocates of Confucianism will reject the real state of society, and their loyalty to naturalism requires them to believe that even the worst social state represents the corrupt scene of the real model of civilized life. The form of society and subject is irreproducible. [4] "In the process of their evolution into ethical and political theories, in any case, Confucian views have naturalistic implications. It is for this reason that Confucianism suffers from the concept of social and subjective defects. " [5]

Naturalism is an ideological feature of Confucianism, and it has also become its fatal weakness. Confucian knowledge system is best at humanistic knowledge and humanistic thought, while social science and natural science are extremely lacking. Confucianism lacks the logic of western thought and the precise measurability of concepts. Although thorough and profound, it cannot be expressed with precise concepts. His language is vague, his judgment is compromised, his thoughts are compromised, and he is pedantic on social issues and does not adapt to the development of the times and social needs.

The closest modern political model of this theory is such a project-combining the promise of social welfare with accepting political imprisonment. According to this plan, people's basic needs should be taken care of-if possible, relying on their peers and companies, and if necessary, being guaranteed by the central government. However, this way of caring should reduce the chance of conflict with the basic aspects of social life and prevent ideology from being challenged by interfering with the improvement of efficiency and harmony. ”[6]

This is a wonderful analysis. Under the guidance of Confucianism, the government regards the people as its own people and advocates loving the people as children. All officials should be close to the people and diligent, but on the other hand, they are not allowed to criticize the government, let alone have the idea of opposition or resistance, because the logic designed by Confucianism here is: our government is the parents of the people, and we will love and treat you like our parents. In this case, do you still want to criticize us or oppose us? How can you live without my government? ! Therefore, providing people's welfare-the most basic human rights have become the only human rights demand-has become the only obligation of the government.

Unger believes that the insights of classical Confucianism on the issue of harmony and consistency are beyond the reach of any traditional school of thought in China. 1) Confucianism pays attention to the relationship between society and individuals. People think that the direct relationship between people is a part of the whole social life system. This system cannot be realized and judged until it is transformed into fragmentary personal experiences and experiences. 2) Personal feelings are always influenced by others. The more perfect the moral cultivation, the less the experience of his instrumental position. 3) Believe that passionate life has vitality and impact; Benevolence is an attribute of self-expression and self-formation, relativity and guiding force, which is the power of benevolence. Benevolence can control conflicts and desires, so that people can realize the ideal social relationship model. [7]

He has unique views on these three points of Confucian "harmony" thought. The emotional connection between people replaces the public social structure, and the production, exchange and distribution, as well as the communication between public rights and private rights, are all based on human feelings. Personal passion is always influenced by the attitude evaluation of others. China people's right and wrong, good and bad, and even motives are often very concerned about other people's evaluation. Believe in the role of "benevolence" in personal moral category in social life. If these Confucian thoughts and teachings are applied to a simple natural economy and a simple life scene in Taoyuan, it will be very enlightening for the realm of personal life. However, in the field of public life in modern society, Confucianism can only become a private life belief and personal moral cultivation, and it is difficult to organize and control society through it.

Unger's comments on Confucianism are as follows: Confucianism, as an attitude or way to treat society, mistakenly regards a system of social stratification and hierarchical rule as a social life system that can well mediate conflicts between individual opinions. It ignores the restrictions between production and exchange and between subjectivity and association, which limits the way out for developing alternative options. Its tolerance for this restriction is manifested in the proposition of personal relationship, which is instilled into this softened naked rule through exchange and loyalty. In fact, this proposition will only waste precious opportunities for real progress and human reconciliation. When the established or sudden special interests are faced with new challenges, when the conventional movement in social order is in opposition to the revolutionary conflict that loses power, and when the tyranny of various production, classes or nations focusing on personal circumstances is overthrown, Confucianism does not realize the emergence of multifaceted production, emotion and cognitive power. [8]

I agree with Professor unger's above criticism of Confucianism. Confucianism does regard social stratification and hierarchical rule system as a social life system that can mediate personal contradictions. In the ideal choice of system, only one system model is given, which excludes the possibility of other choices and makes people accept the reality only in the only choice. At the same time, its genius lies in the paternalistic way, treating people with loving parents and making them obey the arrangement of hierarchy, which is one of the characteristics of Confucianism. The so-called "exchange and loyalty factor" actually reveals the Chinese-style relationship between the government and the people: on the one hand, both sides want what they want, and the people only want welfare, but the government asks the people to give up their freedom; On the other hand, the government loves the people like parents, and the people are as loyal to the government as their own children. This has become a major feature of China's system construction. The emergence and existence of the rule of man is due to such a relationship of exchange and loyalty.

My basic view on this feature of Confucianism summarized by unger is: From the standpoint of the rule of law, I oppose this idea of Confucianism because it ignores freedom and equality. But I'm worried that it is a reflection of the objective facts of the Chinese nation's character, and it is a kind of local knowledge that will inevitably come into being and exist in China. If that is the case, I think there should be another future for the rule of law in China.

We have to consider, what are the reasons for the single design of the social system model, "softened naked rule", "exchange and loyalty" and so on? Is it because of the special local resources of China society that these Confucian thoughts become inevitable? Or did it only appear in China society under the advocacy of Confucianism? If it is the former, it is inevitable for China to change Confucianism and its transformation form in reality, so it will be very difficult to change it.

If it is the latter, it shows that the emergence of Confucianism is not inevitable. It allows us to replace Confucianism with another thought, and if necessary, we can deny a certain social system structure advocated by Confucianism.

The starting point for me to raise this question is to find out a question: How likely are we contemporary China people to overcome the obstacles brought by Confucianism to the rule of law?

A friend said to me: If you know China well, then you will be pessimistic about the future of the rule of law in China! I think this view is not unreasonable in a sense. The following eight principles developed by or from Confucianism have seriously hindered the rule of law in China. They are: the view of justice with substantial tendency (rules and procedures as forms can never compete with the legitimacy of goals and results; However, the rule of law is precisely based on formal justice), the concept of benevolent government (the government power under the rule of law is suspected and controlled), and the effectiveness of the system depends on the individual's morality and authority (the individual's morality and authority are very secondary in the rule of law order), there is benevolence and morality without contractual integrity (the spirit of the rule of law is actually the spirit of contract, and the rule of law relies on integrity, Without honesty, there is no rule of law), centralized politics (the rule of law avoids centralization as much as possible), administrative standard and hierarchical concept (the concept of right standard and equality is one of the spiritual essence of the rule of law), ethics of the relationship between justice and benefit (consistent with the effective mechanism of the market, and the rule of law encourages interests), and the absolute hierarchical relationship between individuals and groups (the hierarchical relationship between individuals and groups in the rule of law order is relatively dynamic). I think Professor unger may have come to the conclusion that China is a negative representative of the world rule of law spectrum because he saw these difficulties in China. I often ask myself: Is it a paradox to build the rule of law in China?

Is there any way to build a complete rule of law at a relatively low cost of transforming traditional culture? In my conversation, Professor unger emphasized the use of a system-an open and dynamic development system, which can absorb conflicts, adjust itself and update itself. This is a very enlightening answer. If we examine the characteristics of "absorbing conflicts, self-regulation, self-renewal and open dynamic development", we will find that there is no other institutional form except procedures. The plan is characterized by tolerating contradictions, absorbing conflicts, resolving disputes, self-adjustment and self-renewal.

The rule of law is not the most ideal state of mankind. The rule of law is also deeply troubled by some basic contradictions, and it cannot give full play to the mission of individual and collective will. But our society still needs the rule of law. We have no reason to reject the rule of law and choose other order logic and governance methods with more disadvantages.

First draft in March 2003

Finalized in April 2005

(This article contains China Book Review, Volume IV, Guangxi Normal University Press, 2006).